At Wired, David Kravets has posted LimeWire Begs Music Industry for Second Chance, an interview with the justifiably desperate Zeeshan Zaidi, COO of LimeWire LLC. In the aftermath of Judge Kimba Wood's Order holding that LimeWire intentionally induced mass piracy for a decade, Mr. Zaidi has announced that LimeWire will now generously "consider aggressively filtering out pirated content" if the music industry will agree that LimeWire will be "permitted to live on as a for-pay music download service."
There are three flaws in Mr. Zaidi's plan. Each seems fatal.
First, Mr. Zaidi's timing is way off. His plan could have been viable if executed on January 25, 2005, the day after the Defendants in Grokster nominated themselves for the litigation analog of a Darwin Award by citing fear of "criminal investigation" as their basis for refusing to let the Department of Justice review the record in Grokster. But LimeWire choose to keep on inducing massive piracy for nearly five years, and according to Judge Wood, it is still doing so about 98.8% of the time. The Grokster decision was LimeWire's "second chance." It was wasted years ago.
Second, when pleading for mercy, it never helps to add insult to injury by presuming former victims to be stupid. Mr. Zaidi must know that LimeWire built its huge user base by gobbling up piracy-minded users migrating from other file-sharing programs whose distributors took the subtle hints in the Supreme Court's unanimous Grokster decision--such as Justice Breyer's reference to the Racketeer-Influenced and Corrupt Organizations Act (RICO). If LimeWire starts "filtering," its users will all desert in droves--many to existing or future "forks" of the open-source code that makes LimeWire particularly unfit to "go legit."
Third, until LimeWire cleans up its act, Mr. Zaidi cannot expect legitimate businesses to "partner" with an entity that has spent years displaying not only abject contempt for the federal civil rights of artists, but also abject contempt for public safety. If Mr. Zaidi is unacquainted with LimeWire's long history of appalling conduct that has compromised national, military, corporate and personal security while empowering pedophiles and identity thieves, a few of its consequences are summarized here. Analyses of the many "technological features to induce users to share" known to cause such disasters are summarized here, and detailed here, here, and here.
Consequently, if LimeWire was hoping to display some hint of long-overdue genuine respect for users of its program and the copyrights of artists, it has again failed to do so. The real question is this: Is there something--anything-- that LimeWire could do voluntarily that would actually display some potentially meaningful genuine contrition and belated respect for the rights of artists and public safety?
Interestingly, I believe that the answer to that question is "maybe." A good first step would be to comprehensively remediate inadvertent sharing by LimeWire users. This would be relatively easy to do.
LimeWire could release a new version of its program, and use all means at its disposal to aggressively urge or require all existing users of all prior versions of LimeWire to upgrade to it. This new version of LimeWire would NOT contain any sort of "filtering"--other than the inane off-by-default "optional" filter included in many prior versions of LimeWire. It would, however, contain some important changes:
- When installed, the new version would remediate all potential inadvertent sharing caused by any prior versions of LimeWire by halting all sharing of all files being shared by any installed or previously installed version of LimeWire. The user would then be informed that any sharing had been halted, and that they could access the appropriate interface to re-select any files that they wished to resume sharing.
- The new version would not "share" any downloaded or existing file unless the program's user (1) took affirmative steps to access the file through a dedicated sharing-related interface, (2) took affirmative steps to individually select the file through a process clearly indicating that the user intended to select that file for sharing, and (3) took affirmative steps to confirm his or her intent to share that file, after receiving a clear, concise warning about the potential legal and privacy risks of sharing that file.
- The new version would disable, by default, all "ultrapeer"or "DHT"-related capabilities. To enable either, users would have to make a clear, affirmative choice to enable them after receiving a clear warning about the performance issues and legal risks inherent in "playing Napster" for other users of a Gnutella-based file-sharing program and then confirming their intent to incur such risks.
That's it. These changes would not compromise LimeWire's existing functionality--they would merely ensure that a LimeWire user would share a copyrighted file (or a sensitive personal file) only when that user had made an affirmative and informed decision to do so. No more tricks. And for that reason, no more get-out-of-jail-soon-cards given to LimeWire users "sharing" child pornography
--a result that I warned LimeWire a year ago would inevitably occur soon unless they remediated their misconduct.
Mr. Zaidi said, "The biggest challenge is changing the behavior of a generation of internet users to get them to pay for music..." That's wrong. LimeWire has done much to ensure that changing the downloading-related behavior of LimeWire users will be difficult. But LimeWire's own conduct strongly suggests that dramatically changing the sharing-related behavior of LimeWire users may be as simple as ensuring that they know how they are behaving.
This seems like the least that LimeWire could do--were it genuinely interested in belatedly displaying some potentially genuine contrition and respect for the rights of artists, LimeWire users, and public safety. Whether it would be enough to matter to the artists and record labels just held to have been the victims of a decade of deliberate wrongdoing is for them to decide.
In any case, I strongly urge the Lime Group Plaintiffs to consider including the preceding suggestions in a request for injunctive relief, perhaps as a first step preceding the implementation of a shut-down. Make Mark Gorton and LimeWire LLC clean up their mess before they shut it down.